1

A.F.R.

Reserved On 27.01.2022

Delivered On 31.05.2022

Case :- CRIMINAL APPEAL No. - 2111 of 1988

Appellant :- Ram Singh And Others

Respondent :- State of U.P.

Counsel for Appellant :- N.K. Sharma,Anshul Kumar

Singhal,Mukesh Kumar,S.P.S. Chauhan,Vinod Kumar Singh

Counsel for Respondent :- A.G.A.,Ravi Prakash Singh

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Subhash Chandra Sharma,J.

(Delivered by Hon'ble Subhash Chandra Sharma, J.)

1.Heard Sri N.K. Sharma learned Advocate assisted by Sri

Anshul Kumar Singhal learned Advocate on behalf of the appellant

nos.3 & 4; Gajraj and Raghuveer; respectively and Sri Mukesh

Kumar, learned counsel on behalf of the appellant no.5- Ram

Bahadur.

2.This appeal emanates from the judgment and order dated

14.09.1988 passed by the learned VIIth Additional Session Judge,

Aligarh in S.T. No.373/1987 (State vs. Rajveer & others) arising out

of Case Crime No.26 of 1987 u/s 148, 302, 323 readwith Section

149 I.P.C., Police Station Sikandrarau, District Aligarh whereby

appellant Rajveer has been convicted and sentenced for

imprisonment for a period of six months u/s 148; with life

imprisonment u/s 302 readwith Section 149 I.P.C; for a period of

three months simple imprisonment u/s 323 readwith Section 149

I.P.C; and appellant Ram Singh, Roshan, Gajraj, Raghuveer, Ram

Bahadur & Roop Kishore have been convicted and sentenced u/s

147 I.P.C. for a period of three months rigorous imprisonment; u/s

302 readwith Section 149 I.P.C. for life imprisonment; and u/s 323

readwith Section 149 I.P.C. for a period of three months simple

2

imprisonment.

3.Co-appellant Rajveer had died during pendency of this

appeal, therefore, appeal on behalf of co-appellant Rajveer stands

abated.

4.The prosecution case in brief is that informant Ram Khiladi

S/o Surat Singh is R/o Nagla Mahari hamlet of Kachaura, Police

Station Sikandrarao. There was enmity owing to litigation between

the informant Roshan Singh, Ram Singh and the informant and

residents of his village relating to the pathway. As per narration in

the F.I.R on 22.01.1987 at about 5:30 P.M., Pandit Bakelal resident

of the neighbouring village cried near the Pipal tree in the forest

under the fear of ghost on which several people reached there. In

the meantime, the informant and his brother Rukumpal were

coming back to their house from the field with fodder of babul and

passed by the Pipal tree while looking at Bakelal Pandit. When

they were near the Shiv Temple, Rajbir, Ram Singh, Roshan Singh,

Gajraj, Kishorilal, Raghuveer, Ram Bahadur and Roop Kishore

called and asked as to who was there and that who was

shouting/crying, on which the informant replied that it was Bakelal

Pandit who got scared near the pipal tree. On this, they said to him

while abusing that he was not telling the truth. On this, the

informant told them to keep their tongue under control and asked

why were they abusing. An altercation was started between them

and at which the accused said “maro salon ko inka dimag bahut

kharab hai” and they began to beat all of them with lathi and spear.

5.On hearing their screams, his father, brother Ramji Lal,

Ramdeen, Dhyan Singh and Krishnaveer ran to save them. They

were assaulted as well. Rajveer was equipped with spear and

others were carrying lathi. Rajveer pierced with spear in the

abdomen of Rukum Pal who fainted and fell down. In the

3

meantime, Netrapal, Sughar Singh and Foran Singh came there

and the accused/appellants ran away. It was stated in the report

that in defence, the complainant side also wielded lathi which might

have caused injuries to some of the persons of the accused party,

but all on the side of the complainant were injured. Rukumpal

succumbed to the injuries on the way to the hospital Sikandrarao,

and then they reached the police station. Written tehrir stating the

above noted facts was prepared by the informant and on the basis

of it, F.I.R. was lodged at the police station on the same day at

about 21:30 P.M.

6.The inquest of deceased Rukum Pal was conducted by S.I.

Baljeet Singh on 22.01.1987 on the same day at about 10:40 P.M.

at the gate of the police station and the inquest report was

prepared in the presence of the witnesses present there. The dead

body was sealed, essential papers were prepared and the body

was handed over to constables Prempal Singh and Ram Tirath

Singh for the post-mortem. Dr. T.N. Goel conducted autopsy of the

dead body of Rukampal which was received by him in a sealed

bundle, on 23.01.1987 at 4:30 P.M. and the post-mortem report

was proved as Exihibit Ka-2. Details of the post-mortem report are

as under:-

External Examination

Age of the deceased was about 30 years and the time of death

about one day. Average built body. Rigor mortis was present in

both upper and lower extremities. Eyes and mouth were closed.

Antemortem Injuries

1. Penetrating wound 1.5 cm x 1 cm x cavity deep on the left side

of upper abdomen region. Margins are cleaned.

4

2. Abrasion 1.5 cm x 1.5 cm on back of the right elbow.

3. Abrasion 1 cm x 0.5 cm on back of the left wrist.

4. Linear abrasion 3 cm on outside middle of the left leg.

Internal Examiantion

Scalp, skull – NAD. Membrane – NAD. Brain – NAD. Base – NAD.

Vertebrae – NAD. Spinal Cord – Not opened.

Thorax

Walls, ribs and cartilage – NAD. Pleaura – NAD. Larynx and

Trachea – NAD. Right and left lungs – NAD. Pericardium – NAD.

Heart – NAD. Weight – 6.5 ounces. Vessels – NAD.

Abdomen

Walls – as described. Peritoneum – punctured left side upper part.

Cavity – partly clotted blood present. Buccal cavity, pharynx &

oesophagus – NAD. Teeth – 16/16. Stomach – punctured with

clotted blood present 40 ounces food material present mixed with

blood. Small intestine – gases and faecal matter. Large intestine –

gases faecal matter. Liver and gall bladder – NAD. GB – half full.

Pancreas – NAD. Spleen – NAD weight 4.5 ounce. Kidneys – NAD

with 7.5 ounce both bladder empty. Generation organs – NAD.

Cause of death – due to shock and hemorrhage resulting from

injury no.1.

7.On the date of the incident injured Ramji Lal, Ram Khiladi,

Suraj Singh, Dhyan Singh, Krishna Singh were also examined by

Dr. L.S. Chauhan at PHC Sikandra Rao, Aligarh. The details of

injuries found on the person of Ramji Lal are as under:-

(a) abraded contusion 3 cm x 2 cm x muscle deep on

5

forehead 5 cm above the right eyebrow.

(b) abraded contusion 4 cm x 2 cm on the back of left

elbow joint. All injuries were simple in nature and

caused by some hard and blunt object. Duration fresh.

8.On the body of Ram Khiladi, the following injuries were found

:-

(a) abraded contusion 4 cm x 7 cm on the outer part of

right upper arm from above the right elbow joint.

(b) Contusion 5 cm x 2 cm on the back of the right

forearm 6 cm above the right elbow joint. All injuries

were simple in nature, caused by some hard and blunt

object. Duration fresh.

9.Injuries found on the body of Suraj Singh are as under :-

(a) Contusion 3 cm x 2 cm on the back of right shoulder

oblique in direction.

(b) Contusion 8 cm x 2 cm on the back of right forearm

below the elbow joint.

(c) Lacerated wound 1.5 x 5 cm x tissue deep on the

back of the right hand just below the wrist joint.

(d) Abraded contusion 4 cm x 2 cm on the left scapula

region 3 cm below the shoulder joint. All injuries were

simple in nature, caused by some hard and blunt object.

Duration fresh.

10.Injuries found on the body of Dhyan Singh are as under :-

(a) Lacerated wound 1 cm x .2 cm x tissue deep on the

6

right side of face just away from the nose.

(b) Contusion 6 cm x 3 cm on the back of left forearm 8

cm blow the left elbow joint oblique in direction.

(c) Contusion 3 cm x 2 cm below the back of right

forearm 2 cm above the wrist joint. All injuries were

simple in nature, caused by some hard and blunt object.

Duration fresh.

11.Injuries found on the body of Krishna are as under :-

(a) Contusion 4 cm x 2 cm on the back of right leg 5 cm

above the ankle joint. Injury was simple in nature

caused by some hard and blunt object. Fresh in

duration.

12.The investigating officer visited the place of the occurrence,

collected blood stained and plain soil in separate boxes, sealed

them and prepared fard Ex Ka- 12. Two bundles of fodder of babul

were taken into possession and given in supurdagi and fard

supurdaginama Ex Ka-13 was prepared.

13.Search of the house of accused Rajveer was made on

29.01.1987 from where blood stained spear was recovered at the

instance of the appellant Ram Singh and taken into custody and

fard Ex Ka- 15 was prepared.

14.After inspection of the place of occurrence at the instance of

the informant,site plan Ex Ka- 11 was prepared on 23.01.1987 by

the Investigating Officer and the site plan Ex Ka-23 relating to

recovery of spear from the house of co-appellant Rajveer was also

prepared on 29.01.1987. The Investigating Officer had also

recorded the statements of witnesses conversant to the facts of the

7

case. He concluded the investigation and found a case prima facie

made out u/s 147, 148, 149, 323, 302 I.P.C. against the appellants

and after preparing the charge-sheet, he submitted it to the court

concerned.

15.Cognizance of the offences was taken by the learned C.J.M.,

who provided copies of prosecution papers to the appellants in

compliance of Section 207 Cr.P.C. and committed the case to the

court of sessions for trial.

16.Learned trial court framed the charges u/s 147, 148, 302, 323

readwith Section 149 I.P.C. on the basis of the material on record

after giving opportunity of hearing to the appellants. Charges were

readover and explained to them. They pleaded not guilty but

denied the charges and claimed for trial, consequently case was

fixed for prosecution evidence.

17.The prosecution examined PW-1 Ram Khiladi, PW-2 Sughar

Singh, PW-3 Netrapal, PW-4 Sri Krishana Veer as witnesses of

fact. PW-5 Dr. T. N. Goel is the doctor who conducted the post-

mortem of the body of deceased Rukampal and prepared post-

mortem report. PW-6 Dr. L.S. Chauhan had examined the injuries

on the person of Ramji Lal, Ram Khiladi, Suraj Singh, Dhyan Singh

and Krishan Singh and prepared injury report. PW-7 H.C. Sri

Krishna prepared the check F.I.R. on the basis of tehrir and entered

the detail in the G.D. PW-8 S.I. Mahaveer Singh Yadav conducted

the investigation of the case after S.S.I. Kailash and Inspector

Baljeet Singh and submitted the charge-sheet. PW-9 Constable

Ram Tirath brought the dead body to the mortuary for the post-

mortem. PW-10 Lakhan Singh is a witness of recovery of spear

from the house of appellant Rajveer. PW-11 Inspector Baljeet

Singh recorded the statement of witnesses and prepared the

inquest report and after visiting the place of the incident prepared

8

the site plan.

18.After conclusion of prosecution evidence, the statements of

appellants under Section 313 Cr.P.C were recorded wherein they

negated the statements made by the witnesses before the court

and stated that witnesses had falsely implicated them due to

enmity. Co-appellant Rajveer had also negated the recovery of

spear from his house. All the appellants had made similar

statements.

19.Appellants were given an opportunity for defence evidence

wherein they examined Layak Singh as DW-1 in their support.

20.Learned trial court heard the arguments for the prosecution

as well as appellants, passed the judgment and order dated

14.09.1988 wherein he found the appellant Rajveer guilty under

Sections 148, 302, 323 read with Section 149 I.P.C. Appellants

Ram Singh, Roshan, Gajraj, Raghuveer, Ram Bahadur and Roop

Kishore were found guilty u/s 147, 302, 323 readwith Section 149

I.P.C. and sentenced as aforesaid against which this appeal has

been preferred.

21.Learned counsel for the appellants submits that the judgment

of the learned trial court is against the evidence available on

record. It is bad in the eyes of law and based on the testimony of

interested witnesses those who were related to the deceased. No

independent witness had been examined though the occurrence

took place on a public place. The prosecution failed to establish the

motive for committing the offence. As a result, no offence can be

said to be made out against the appellants under Sections 302,

323 read with Section 149 I.P.C. Appellant Rajveer who had been

assigned the role of stabbing spear had already died. There was

no evidence of unlawful assembly and common object, therefore,

9

conviction under Section 302 with the help of Section 149 I.P.C.

against all the appellants cannot be sustained. The learned trial

court on misappropriation of the evidence has convicted and

sentenced all the appellants with the aid of Section 149 I.P.C.

which is bad in law. There was no common object in the minds of

the appellants to murder the deceased. There was an altercation

between the appellants and the deceased due to which the

incident took place wherein people from both the sides received

injuries. This fact is clear from the F.I.R. wherein the informant has

mentioned that in defence people on their side also wielded lathi

causing injuries to some people on the accused side. In this way,

from the evidence on record, it transpires that the appellants had

not committed the act in prosecution of their common object so

they cannot be held guilty for the overt act committed singly by

appellant Rajveer for stabbing with spear to the deceased. Even if

it is accepted that there was a common object it may be to the

extent of causing injuries only but not to commit the murder.

Therefore, the case, at the worst, would fall within the limits of

Section 323 I.P.C. and the appeal deserves to be allowed.

22.Learned A.G.A. opposed the submissions made by the

learned counsel for the appellants and urged that, in this case, the

appellants caused injuries to the deceased with lathi and spear and

also to other injured persons with lathi. All the appellants formed an

unlawful assembly and in prosecution of the common object of the

assembly they committed the murder of Rukampal and caused

injuries to others. It was argued that it is not necessary that an

assembly may be unlawful since the beginning but it may become

unlawful subsequently and in this regard the argument made by the

learned counsel for the appellants is not tenable. The witnesses

had sustained injuries on their person so their presence cannot be

disputed and their testimony is wholly reliable. There are no

10

material contradictions in their statements. They are natural

witnesses of the incident so their testimony cannot be said to be

unreliable and untrustworthy. Learned trial court has convicted the

appellants on the basis of the evidence on record. There is no

illegality in the judgment in question and the appeal being devoid of

merit is liable to be dismissed.

23.From the submissions and perusal of the record,the following

questions emerged for consideration by this Court (i) as to whether

there was any unlawful assembly and common object in

prosecution of which the offence was committed or the incident

took place only at the spur of the moment without any prior meeting

of mind. (ii) Further whether it was only to the extent of committing

marpit for which liability of all the appellants cannot be fixed with

the help of Section 149 I.P.C.,constructively, but it may be fastened

individually on the appellant Rajbeer who did overt act in causing

injury to Rukampal with spear resulting into his death, and that the

offence committed by the appellants goes to the extent of Section

323 I.P.C. since appellant Rajbeer who stabbed the deceased with

spear had already died and this appeal on his behalf stood abated.

24.Before we deal with the contentions raised by the learned

counsel for the appellant, it would be convenient to take note of

the witnesses account as adduced by the prosecution.

25.PW-1 Ram Khiladi,the informant and brother of the deceased

Rukampal deposed that he is resident of Nagla Surat Singh.

Appellant Rajbeer and Gajraj are residents of Nagla Beni Ram.

Other appellants Roshan, Ram Singh, Ram Bahadur, Kishori, Roop

Kishor and Raghuveer are residents of Nagla Kaka which is 200

meters away in the South direction. Nagla Beni Ram is located in

the Western direction at the distance of 350 meters. Appellants

Rajbeer and Gajraj are uncle and nephew, Roop Kishor and Kishori

11

are cousins. Ram Singh and Ram Bahadur are also uncle and

nephew, likewise Kishori and Rajbeer are also cousins.The

informant moved an application u/s 133 Cr.P.C. before the S.D.M.

against Roshan and Ram Singh for removing the obstruction in the

pathway in front of his house which was withdrawn by him under

the pressure of both the appellants. That pathway was still closed

regarding. Earlier also an application was moved before the S.D.M

whereupon order was passed to remove the obstruction and open

the way due to which they became inimical with him. He further

reiterated the averments in the FIR about the occurrence.It is

stated by PW 1 that he wrote a tehrir by taking a piece of paper

from the compounder of the hospital and lodged the report at the

police station Sikandrarao.He proved the written tehrir being in his

writing and signature as Ex Ka – 1. It was further stated that all the

injured persons were sent to Sikandrarau hospital for medical

examination where they were medically examined and the dead

body of Rukampal was kept in front of the police station.

This witness was subjected to a lengthy cross-examination

by the learned counsel for the appellants wherein the witness had

not disclosed any such fact which weakens his testimony. He had

assigned the role of stabbing with spear to the appellant Rajbeer

and marpit by lathi by other appellants.

26.PW-2 Sughar Singh deposed that on the date of the incident,

at about 5:30 P.M.,he was coming from the side of the village and

when reached near the temple outside the village,he heard the

noise of abuses. Hearing the noise,he reached to the boundary line

of the field of Kedari, where Sobran Singh and Netrapal Singh were

also present. He saw that Rukampal, Ram Khiladi, Suraj Singh,

Dhyanveer Singh, Krishnaveer Singh and Ramji Lal were being

beaten by Rajveer, Gajraj, Roshan, Raghuveer, Kishori, Roop

12

Kishor, Ram Singh and Ram Bahadur. Rajveer stabbed Rukampal

with spear in his stomach, as a result, he fell down.Other accused

persons beaten Rukampal, Dhyan Singh, Suraj Singh, Ramji Lal,

Ram Khiladi and Krishnaveer with lathi. All these persons

sustained injuries of lathi. After beating, accused persons went

away towards the East direction. Rukampal became unconscious

and was taken to his house on a cot.

This witness was also subjected to grueling cross-

examination by the learned counsel for the appellants but even

during the cross-examination he again asserted the account of the

incident as committed by the appellants. No such statement was

made by him as to indicate that this witness was not present at the

place of occurrence or he could not identify the assailants.

27.PW-3 Netrapal Singh had deposed that the time of murder of

Rukampal was 5:30 P.M. He was at the temple and heard noise

coming from the field of Kedari. The boundary line of the field of

Kedari and the temple was same. Hearing the noise he went to the

filed of Kedari where Ram Khiladi, Ramji Lal, Rukum Pal,

Kishanveer, Ramdin, Surajpal, Sugar Sigh & Sobran Singh were

present. Rajbir was equipped with spear (Bhala), Gajraj Singh,

Kishori Lal, Roopkishor, Ram Singh, Ram Bahadur, Roshan Singh

and Raghuveer were equipped with lathi. These people started

beating Ram Khiladi and others. Rajbir stabbed Rukampal with

spear who fell on the ground. PW 3 stated that he interrupted and

said why did you beat them,whether you would kill them. In

addition to Rukam Pal, Ramji Lal, Ram Khilari, Ramdin, Kishan

Veer and Suraj Pal also sustained injuries. After beating, the

accused persons ran away towards East.

This witness faced lengthy cross-examination but he

reiterated the detail of the incident categorically without any

13

deviation.

28.PW-4 Krishnaveer also stated that his brother Rukam Pal

was murdered at about 5:30 P.M. He was at home at that time. His

father, brother Ramji Lal, Ramdin and Dhyan Singh were also at

home. Hearing the noise from near the temple, they went to the

field of Kedari (near the temple) where Rajbir, Gajraj, Ram

Bahadur, Ram Singh, Roshan Lal, Kishan Lal and Roop Singh

were present. They were beating his brothers Ram Khiladi and

Rukam Pal. Rajbir had spear and others were equipped with lathi

and all the accused were beating the complainant side. When they

tried to save the injured, the accused Rajbir and others also beaten

them and caused injuries, Rajbir stabbed with spear in the stomach

of his brother Rukam Pal before him, with the stab wound Rukam

Pal fell down. He,(P.W. 4) Ram Khiladi, Ramji Lal, Dhyan Singh

and his father Sooraj Singh also sustained injuries. After

committing marpit, accused persons went away towards the East.

Rukum Pal was brought to his house by them, then to the police

station by tractor. While they were taking him to the hospital at

Sikandra Rao he succumbed to his injuries.

This witness was also cross-examined by the learned

counsel for the appellant at length but during cross-examination the

witness had asserted the details of the incident clearly without

deviating from the actual facts relating to the occurrence.

29.PW-5 Dr. T.N. Goel had deposed that on 23.01.1987 he was

posted at Malkhan Singh Hospital and conducted the post-mortem

of the dead body of Rukam Pal at about 4:35 O'clock. Dead body

was brought by the constables Prem Pal and Ram Tirath. He had

proved the injuries found on the person of deceased and also the

post-mortem report, having being prepared in his hand writing and

signature as Ex Ka- 2. He opined that the death of deceased

14

Rukam Pal was possible in the evening at about 8:30 P.M. on

22.01.1987 and injury no.1 could be inflicted with spear and others

with lathi and danda.

30.PW-6 Dr. L.S. Chauhan had deposed that on 22.1.1987 he

was posted at P.H.C. Sikandrarau as Medical Officer. On that day,

he examined injuries on the person of Ramji Lal at 11 O'clock in the

night, Ram Khiladi at 11:15 P.M., Sooraj Singh at 11:30 P.M.,

Dhyan Singh at 11:45 P.M. and Kishan Singh at 12:00 P.M. He

proved the injuries found on the person of injured and also injury

report prepared by him in his hand writing and signature. He

proved them as Ex Ka- 3 to 7.

31.PW-7 Shri Krishan, H.C. Police Station, Sikandrarau deposed

that he prepared check report of this case in his hand writing and

signature and proved it as Ex Ka- 8. Further stated that the entry of

F.I.R. was made as report no.41 in G.D. in his hand writing and

signature and proved the carbon copy of G.D. by comparing it with

the original, as Ex Ka- 9.

32.PW-8 S.I. Mahaveer Singh Yadav stated that he was handed

over the investigation of this case after S.S.I. Kailash Bhusan and

Inspector Bajeet Singh. He recorded the statements of witnesses

Ramdin, Netrapal, Sughar Singh and all the accused persons. He

prepared the charge-sheet in his hand writing and signature which

he proved as Ex Ka-10.

33.PW-9 Constable Ram Tirath, stated that on 22.01.1987 at

about 12:00 O'clock in the night he was handed over the dead

body of deceased Rukam Pal and brought it to post-mortem house,

Aligarh with relevant papers. Constable Prem Pal was also with

him at that time.

34.PW-10 Lakhan Singh is a witness of recovery of spear at the

15

instance of Rajbir and proved the recovery as Ex-1.

35.PW-11 Inspector, Baljeet Singh had investigated the case

prior to S.S.I. Mahaveer Singh. He proved the investigation done

by him and also the inquest report which was got prepared by S.I.,

K.P. Sharma and the site plan of the place where two bundles of

babul fodder were lying as Ex Ka-11. He also proved fard relating

to collection of blood stained and plain soil from the place of

occurrence as Ex Ka-12, supurdaginama relating to two bundles of

babul fodder as Ex Ka-13 and search memo of the house of

accused Rajbir as Ex Ka-14. Thereafter,he was transferred. Further

he proved the fard recovery of the spear in the hand writing of S.I.,

K.B. Singh as Ex Ka-15, the inquest report of deceased Rukam Pal

in the hand writing and signature of Sri K.P. Sharma as Ex Ka-16,

other relevant papers relating thereto as Ex Ka-17 to Ex Ka-22 and

the site plan relating to the place of recovery as Ex Ka-23.

36.PW-1 to PW-4 are witnesses of fact. All these witnesses

remained intact during their gruelling examination. No such

contradictions are visible in their statements which can make their

testimony unreliable and unnatural. Minor contradictions are there

but they are of cosmetic nature and not likely to affect the credibility

of their testimony. In the instant case, both informant, injured

persons and the appellants belong to the adjacent locality. There

cannot be any dispute about the identification of the appellants.

Though the appellants have stated in their statements recorded u/s

313 Cr.P.C. that they had been implicated falsely on account of

enmity but there was no suggestion of enmity during cross-

examination of any of the witnesses which might have adversely

affected their reliability and become an excuse for implicating the

accused falsely while absolving real culprits. It is to note that PW-1

Ram Khilari, informant has stated that he moved an application u/s

16

133 Cr.P.C. before the S.D.M. against Roshan and Ram Singh for

removing obstructions in the pathway in front of his house which

was withdrawn by him. Thereafter, pathway was still closed and he

filed another application before the S.D.M. to remove the

obstructions owing to which they became inimical with him. It infers

that there was dispute relating to obstruction in the way of the

informant between appellants Roshan and Ram Singh but not with

other appellants. It can also not be said that on account of such a

dispute informant would implicate appellants falsely leaving the real

assailants. On the ground of enmity the testimony of ocular

witnesses those have sustained injuries in the incident cannot be

said to be unreliable because they are natural witnesses of the

incident. On the other hand, enmity is said to be with appellant

Roshan and Ram Singh whereas other appellants Gajraj, Ram

Singh, Ram Bahadur and Roop Kishor were not inimical to the

informant. Therefore, the testimony relating to their involvement

also can not be disbelieved.

37.There is not even an iota of evidence on record which could

suggest that PW-1 to PW-4 had any other grudge against the

appellants in any case to implicate them falsely.

38.From PW-1 to 4, all are related to each other and also to the

deceased Rukumpal regarding which argument had been made

that all these witnesses being relative and highly interested, are not

reliable and lack of account of independent witnesses in support of

the case is fatal no the prosecution story. No doubt the prosecution

witnesses from PW-1 to 4 relating to the fact, as examined in the

case, are members of the same family as uncle and nephew and

also related to the deceased. But the relationship itself is not a

ground to reject the testimony of witnesses, rather a family member

would be last to leave the real culprit and falsely implicate any

17

other person.

39.In the case of Brahm Swaroop and another vs. State of

U.P. (2011) 6 SCC 288 the Apex Court in Para No.21 has observed

as under

“merely because the witnesses were related to the

deceased persons, their testimonies cannot be

discarded. Their relationship to one of the parties is

not a factor that affects the credibility of a witness,

more so, a relation would not conceal the real culprit

and make allegations against an innocent person. A

party has to lay down a factual foundation and prove

by leading impeccable evidence in respect of its false

implication. However, in such cases the Court has to

adopt a careful approach and analyse the evidence to

find out whether it is cogent and credible evidence.”

40.The Court also referred cases of Dalip and others vs. State

of Punjab A.I.R. (1953) SC 364; Masalti vs. State of U.P. (A.I.R.)

1965 SC 202.

41.In Masalti vs. State of U.P. A.I.R. 1965 SC 202, the Apex

Court observed in Para No.14

“but it would, we think, be unreasonably to

contend that evidence given by witnesses should

be discarded only on the ground that it is evidence

of partisan or interested witnesses. The

mechanical rejection of such evidence on sole

ground that it's partisan would inveriably lead to

failure of justice. No hard and fast rule can be laid

down as to how much evidence should be

appreciated. Judicial approach has to be cautious

in dealing with such evidence; but the plea that

such evidence should be rejected because it's

partisan cannot be accepted as correct.

42.It is common knowledge that village (mohalla) life is faction

ridden and involvement of one or the other in the incidents is not

unusual. One has also to be cautious about the fact that wholly

independent witnesses are seldom available or are otherwise not

18

inclined to come forth. Lest they may invite trouble for themselves

for future. Therefore, relationship of eye-witnesses inter se, cannot

be a ground to discard their testimony. There is no reason to

suppose the false implication of the appellants at the instance of

the eye-witnesses. It would also be illogical to think that witnesses

would screen the real culprits and substitute the appellants for

them.

43.This Court has also made such observations in Para No.14 of

Rameshwar and others vs. State 2003 (46) ACC 581.

44.It is pertinent to note that PW-1 Ram Khilari is an injured

witness and his presence on the place of occurrence cannot be

denied and it can also not be said that he would conceal the name

of real assailants and implicate the false one.

45.It is settled law that the testimony of an injured witness is

considered to be very reliable and is accorded a special status in

law. In the case of Bhajan Singh Vs. State of Haryana (2011) 7

SCC 421, where it was held as follows: " The evidence of the

stamped witness must be given due weightage as his presence on

the place of occurrence cannot be doubted. His statement is

generally considered to be very reliable and it is unlikely that he

has spared the actual assailants in order to falsely implicate

someone else. The testimony of an injured witness has its own

relevancy and efficacy as he has sustained injuries at the time and

place of occurrence and this lends support to his testimony that he

was present at the time of occurrence. Thus, the testimony of an

injured witness is accorded a special status in law. Such a witness

comes with a built in guarantee of his presence at the scene of

crime and is unlikely to spare his actual assailants in order to

falsely implicate someone. Convincing evidence is required to

discredit an injured witness. (vide Jarnail Singh v. State of Punjab

19

(2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra

(2010) 6 SCC 673; Abdul Sayed v. State of Madhya Pradesh

(2010) 10 SCC 259)".

46.In the case of State of U.P. v. Naresh & Ors. (2011) 4 SCC

324, it was held that evidence of an injured witness cannot be

doubted merely because there is a background of previous dispute

or enmity between the parties because this could well be the

motive of giving assault by the accused on injured witnesses. The

evidence of an injured witness has to be appreciated keeping in

view that ordinarily a person, who has been assaulted by someone

would not allow him to go Scot free and falsely implicate persons

other than those who actually assaulted him. The evidence of an

injured witness stand on different pedestal as compared to any

other witness cited by the prosecution as eye witness, who claims

to have seen the incident. Where an injured witness clearly named

the person and the assault made on him by those persons which is

broadly corroborated with what has been found in the medical

report, even though there may not be any mathematical precision

with regard to the manner of assault, the evidence of an injured

eye witness cannot be lightly thrown aside only on certain minor

contradictions and omissions. It cannot be a case of some

exaggeration or it could even be some discrepancy in recollecting

the whole incident with exactitude and certainty but on certain

minor discrepancy disbelieving altogether the testimony of injured

eye witness, would be against the settled principle of appreciation

of evidence.

47.In the case of Bhajan Singh Vs. State of Haryana (2011) 7

SCC 421 it was observed that in Para No.21 :-

21. The evidence of the stamped witness must be given

due weightage as his presence on the place of occurrence

cannot be doubted. His statement is generally considered

20

to be very reliable and it is unlikely that he has spared the

actual assailant in order to falsely implicate someone else.

The testimony of an injured witness has its own relevancy

and efficacy as he has sustained injuries at the time and

place of occurrence and this lends support to his

testimony that he was present at the time of occurrence.

Thus, the testimony of an injured witness is accorded a

special status in law. Such a witness comes with a built-in

guarantee of his presence at the scene of the crime and is

unlikely to spare his actual assailant(s) in order to falsely

implicate someone. "Convincing evidence is required to

discredit an injured witness". Thus, the evidence of an

injured witness should be relied upon unless there are

grounds for the rejection of his evidence on the basis of

major contradictions and discrepancies therein. (Vide:

Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC

259; Kailas & Ors. v. State of Maharashtra (2011) 1 SCC

793; Durbal v. State of Uttar Pradesh, (2011) 2 SCC 676;

and State of U.P. v. Naresh & Ors., (2011) 4 SCC.

48.Therefore, in the light of law reproduced as above and

applying the same to the facts of the present case, it can be held

that the testimony of the injured witnesses, in the present case, is

absolutely clear and cogent and free from any kind of

discrepancies, embellishments and concoctions. Thus, no ground

is made out for brushing aside the testimony of the injured

witnesses. There are no grounds for rejection of the evidence of

PW-1 and, as discussed above, unless and until there are major

contradictions and discrepancies in the testimony of injured

witnesses,there arises no reason for either doubting their presence

at the spot of the incident or for that matter questioning the injuries

suffered by them. Moreover, in the case in hand, the testimony of

PW-1 is not only firm, cogent and convincing but is also in

consonance with the medical evidence on record.

49.Injuries on the person of deceased Rukumpal were caused

by spear, lathi and danda as stated by PW-1 to 5. Ex Ka-2 is the

post mortem report in which penetrated wound and abrasion were

found on the body of deceased Rukumpal and PW-5 Dr. T. N. Goel

has proved the injuries and stated that injury no.1 was possible to

be inflicted with spear and others with lathi and danda though in

21

cross-examination he stated that injury no.2 & 3 could occur by

falling and injury no.4 by friction and also opined that the death of

the deceased Rukumpal was possible in the evening at about 8:30

P.M. on 22.01.1987. In this way, injuries found on the body of

deceased Rukumpal are proved to have been caused with spear,

in the evening on 22.01.1987 and it also corroborates the manner

of causing injuries resulting into death as stated by PW-1 to PW-4.

In this regard, the eye-witness account finds support with the

medical evidence available on record.

50.Likewise, injuries found on the person of Ram Khilari and

Krishan Veer are in the nature of contusions and lacerated wounds

which were said to have been caused by the appellants with lathi

and danda. Ex Ka-3 to 7 are the injury reports relating to the

injured persons. PW-6 Dr. L. S. Chauhan had proved the injuries

and stated that they were caused by hard and blunt object like lathi

and danda and could occur in the evening on 22.01.1987. Injuries

were fresh in nature. In this regard, the testimony of prosecution

witnesses relating to the injury caused by the appellants with lathi

and danda gets corroboration from the medical evidence on record

and the opinion given by the doctor who conducted the medical

examination. In this way, the manner of causing injuries and the

time when they were caused are well established.

51.The place of occurrence is said to be on the way to the home

of the informant passing by the Pipal tree near the Shiv Temple.

PW-1 to PW-4 stated that the incident took place at the aforesaid

place. In the site plan Ex Ka-11, the place of occurrence had been

shown on the North West corner of the field of Kedari where the

crop of mustard was grown and found damaged and two bundles

of babul twigs with leaves were found lying. Blood was also found

there. The Shiv Temple was also situated near that place. Pw-11

Inspector Baljeet Singh had proved the site plan and no question

22

relating to the place of occurrence had been asked to him during

his cross-examination except the distance of village Nagla Surat

from the place of occurrence which he had disclosed as 250 mtrs.

Whereas he mentioned it in the site plan as 200 mtrs. and

explained that it was only a guess work. Blood stained and plain

soil was collected from that place by I.O. Pw-1 Ramkhilari had also

deposed that he reached to the Southern corner of the Shiv temple

where appellants surrounded him. In the meantime, he reached to

the North-East corner of the field of Kedari. There was mustard

crop in the field. During cross-examination also, he stated that pipal

tree was 400 mtrs. from the Shiv temple on the Northern side from

where he along with his brother was coming and was surrounded

by the appellants in the field of Kedari. PW-2 had also stated the

place of occurrence being the field of Kedari in his chief-

examination and even asserted it during his cross-examination.

Likewise, PW-3 & 4 had also deposed the same. Thus the place of

occurrence in the field of Kedari stands proved.

52.There is no delay in lodging of the F.I.R. Occurrence took

place at 5:30 P.M. and F.I.R. was lodged at 21:30 P.M. after four

hours. The distance between the place of occurrence and the

police station was 11 kms. PW-1 stated that after the incident,he

brought Rukumpal to his home, from there while they were bringing

the deceased to Sikandrarao by tractor, on the way he died and

then they went to the Hospital Sikandrarao where compounder told

them that Rukumpal was dead. He then wrote the application and

brought the deceased to the police station with other injured

persons. In this way, the time gap of four hours in lodging the F.I.R.

stood explained and there cannot be said to be any delay much

less inordinate delay. It is proved that the F.I.R. was prompt.

53.Further the attention of this Court has also been drawn

towards the absence of motive to commit the murder. The learned

23

counsel urged that the prosecution had failed to prove motive on

the part of the appellants to commit the crime.

54.In this regard, it is fairly well settled that while motive does

not have major role to play in cases based on eye witness account

of the incident, it assumes significance in cases that rest on

circumstantial evidence. There is no such principle or rule of law

that where the prosecution fails to prove motive for commission of

the crime, it must necessarily result in acquittal of the accused

where ocular evidence is found to be trustworthy and reliable and

finds corroboration from the medical evidence, a finding of guilt can

safely be recorded even if the motive for the commission of crime

has not been proved.

55.In State of Himachal Pradesh Vs. Jeet Singh 1999 (38)

ACC 550 SC, it was held that no doubt it is a sound principle to

remember that every criminal act was done with a motive but it's

corollary is not that no offence was committed if the prosecution

failed to prove the precise motive of the accused to commit it as it

is almost an impossibility for the prosecution to unravel full

dimension of the mental deposition of an offender towards the

person whom he offended.

56.In the case of Baitulla and another Vs. State of U.P. AIR

1997 SC 3946 where occurrence took place in the broad day light

and spoken to by the eye-witness and the same was supported by

Medical Report, it will not be necessary to investigate the motive

behind such commission of offence.

57.This Court has also made such observations in the case of

Rameshwar and others vs. State 2003 (46) ACC 581 that when

there is direct evidence, the motive was not important. Likewise in

the case of State of Haryana vs. Sher Singh and others 1981 Cr.

Ruling 317 SC it has been held that the prosecution is not bound

24

to prove the motive, more so, when crime is proved by direct

evidence.

58. Lastly it was argued that there was no unlawful assembly and

there is no evidence of common object of it to cause the murder of

Rukumpal but the incident was a result of altercation between the

appellants and the informant along with the deceased at the spur of

the moment. Further the death of Rukumpal was caused with the

stab wound of spear which was caused by Rajbir as his individual

overt act and other appellants caused simple injuries only to other

persons and as such they cannot be held liable for the overt act of

Rajbir.

59. It is evident from Ex Ka-1 tehrir that the incident took place at

the spur of moment when the deceased and informant were

returning to their home with babul fodder and on the way near the

Pipal tree Pt. Bankalal was shrieking from where they passed by. In

the meantime, appellants also came there on the way and made

querry about shrieking and also asked as to who they were. On

their reply, that Pt. Bankelal got scared under the Pipal tree,

appellants did not believe but while abusing uttered that they

(deceased and informant) were not telling the truth. On this, the

appellants were confronted by the informant and were hold not to

abuse. At this, altercation among them was commenced when the

accused uttered that – maro salo ko, inka dimag bahut kharab hai'

and they started assaulting them with lathi and spear. PW-1

informant who is the injured witness and with whom the incident

took place also stated in his examination-in -chief that Roshan

said, “salo ko mar lo”.

60.From the words uttered by the appellants, as above noted,it

can be inferred that they meant to beat the informant and

deceased Rukumpal on account of the dispute that arose amongst

25

them relating to query about shrieking of Pt. Bankelal under the

Pipal tree. The immediate cause of the dispute was shrieking of Pt.

Bankelal. There are four injuries on the person of the deceased.

Injury no.1 is penetrating wound and others are in the form of

abrasion and linear abrasion on the back of right elbow, back of left

ankle and outside middle of the left leg. PW-5 Dr. T. N. Goel has

opined during his cross examination that injury no.2 & 3 could be

sustained by falling and injury no.4 with friction. Thus, it cannot be

concluded that these appellants were the person who authored

these injuries on the person of the deceased.In the course of

altercation Rajbir stabbed spear to Rukumpal which pierced his

stomach and he died. This was his individual act. Other injured

were assaulted with lathi by other appellants and after assault, the

appellants ran away. No other injured had received grievous injury.

All the injuries of the injured were in the nature of

abrasions/contusions except two lacerated wounds on the back of

hand and face which were simple.

61.It is also to be noted that as per the F.I.R. version of the

informant, the complainant side also assaulted accused party with

lathi. In his cross-examination also, the informant had deposed that

he made statement before the I.O. that he had also wielded lathi in

defence. PW-3 Netrapal had also made such a statement before

I.O. but during his cross-examination he had denied making such

a statement though admitted that Ramdin also attacked with

danda. PW-4 Krishnaveer had also admitted that Ramdin had

danda and he went to the place of the incident after hearing the

noise of quarrel. It reveals that there was a quarrel and fight

wherein both the parties assaulted each other. Further, it is also

evident from the statement of PW-1 Ram Khilari that appellant

Rajbir and Ram Singh asked him as to who were they. Likewise

PW-2 Sughar Singh had also stated in the cross-examination that

26

when he came at the field of Kedari, two persons on the

complainant side and four other persons on the accused side came

running from the village. This fact further establishes that in the

beginning there were only two accused persons Rajbir and Ram

Singh and afterwards, four other persons joined in from the village

who also participated in the incident of maarpeet. In such a

situation of facts, it cannot be said that the appellants had planned

to kill the deceased or to beat the injured but it was a result of

sudden quarrel and fight between both sides. There was no such

common object of the appellants as well.

61.In the case of Lalji and others vs. State of U.P. 1973 AIR

SC 2505 where during the course of quarrel relating to digging the

earth and extending the frontage of hut one of the accused

persons assaulted the deceased Pancham with spear on his

abdomen as a result he died and other accused persons caused

injuries to other injured persons with lathi causing simple injuries, it

was observed therein that there was remonstrance and counter

remonstrance which resulted in a fight which was a sudden affair

and was the result of heated passion. It was held that the case

does not show that the appellants formed a common object as

there was no per-meditation and the occurrence was a sudden

affair, each of the appellants, in our opinion, should be held to be

liable for his individual act and not vicariously liable for the acts of

others. Further, it was held therein that Lalji gave the spear blow on

the abdomen of the deceased Pancham and his conviction should

therefore, be maintained u/s 304(1) I.P.C. As regards the other

appellants their conviction for the offence u/s 323 I.P.C. was

maintained and sentence of imprisonment u/s 323 I.P.C. was

reduced to the period already undergone.

61.In the case of Chinu Patel vs. State of Orrisa 1990 CRLJ 248,

where accused persons demanded for the return of the chair and

27

as the deceased refused to return the same, a quarrel ensued

which ultimately resulted in a free fight between the parties during

the course of which both sides were injured and one of them died.

It was held that in such a situation as there is no scope for a pre-

planned attack by the accused, the question of accused persons

forming an unlawful assembly having a common object to do any

act mentioned in the five clauses of Section 141 I.P.C. does not

arise for consideration. The view taken by the Apex Court in

aforesaid case of Lalji vs. State of U.P. was followed therein.

63.In so far as the question whether the appellants had formed

an unlawful assembly and had common object of committing the

murder, we have given our earnest consideration to this aspect.

Taking a general picture of the case and after the close scrutiny of

the evidence in its entirety, we find that in the course of altercation

between the injured Rukumpal, Ram Khilari and appellants, in the

heat of passion,Rukumpal was stabbed with spear by Rajbir (now

dead) and the injured succumbed to the stab injury. No other

appellants assaulted Rukumpal with lathi except to other persons

(injured).Under these circumstances, it would be hazardous to hold

that there was an unlawful assembly and common object of that

assembly (of the appellants) was to commit the murder. It is

established from the testimony of the prosecution witnesses that

there was random individual acts done by the appellants without

meeting of mind and, in our view, the appellants can be held liable

only for their individual acts. Therefore, it is established beyond

reasonable doubt that the appellants caused injuries which were

simple in nature and punishable under Section 323 I.P.C. In the

result, the conviction in respect of each of these appellants under

Section 147 & 302 readwith Section 149 I.P.C. can not be said to

be just and lawful and sentence to imprisonment for life to each is,

hereby, set aside.

28

64. The conviction of the appellants under Section 147, 302

readwith Section 149 I.P.C. is modified as conviction under Section

323 I.P.C. and they are sentenced to undergo imprisonment to the

period already undergone.

65.The appeal is partly allowed to the extent indicated above.

The appellants are on bail. Their bail bonds are cancelled. The

sureties shall stand discharged. They need not to surrender.

66.Certify this judgment to the court below for necessary

intimation and compliance. The compliance report be submitted to

this Court through the Registrar General, High Court, Allahabad.

Order Date :- 31

th

May, 2022

Ashok Gupta

(Subhash Chandra Sharma,J.) (Sunita Agarwal,J.)